religious ‘toleration’ in modern...
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RELIGIOUS ‘TOLERATION’ IN MODERN AUSTRALIA:
THE TYRANNY OF RELATIVISM
Inaugural PM Glynn Lecture on Religion, Law and Public Life
Australian Catholic University
The Monastery, 15 Cross Road, Urrbrae, Adelaide
17 October 2017
J D Heydon
Chancellor, Vice-Chancellor, Dr Casey, Father Marshall—
Today, 17 October, is the feast day of St Ignatius – not the famous
St Ignatius of Loyola, but the Bishop of Antioch. He is said to have been
the first person to use the words “catholic church” in writing as meaning
the active church that is identical across all Christian congregations. One
does, however, suspect that a close search of the New Testament would
reveal cognate usages before his time. The career of St Ignatius was
marked by a stress on the real humanity of Christ, and therefore on the
actuality of the physical sufferings of Christ. He had an ardent desire for
martyrdom as a means of sharing the Passion of Christ. His fame rests
on seven letters he wrote after his arrest during a persecution of the
church in Antioch. He wrote them as he travelled in chains under military
escort to Rome. He reached Rome in about AD 110, as the non-
politically correct are for the time being permitted to call that year. That
was in the reign of that beau idéal of the so-called “good” Emperors, the
Emperor Trajan, successful soldier and promiscuous drunk. St Ignatius’s
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desire for martyrdom was met when he was condemned to the wild
beasts in the Roman arena. The career of St Ignatius of Antioch is not
entirely irrelevant to what follows, but for the moment let us move to the
happier subject of Patrick McMahon Glynn.
It is a great honour to have been invited, on this auspicious day, to
deliver the inaugural Glynn Memorial Lecture, and to do so in his
adopted home, Adelaide. He certainly deserves to be remembered in
this way. I regret my inability to do justice to him. His life shows what a
career lay open to Catholic talent both in 19th century Ireland under the
Protestant Ascendancy and in the four decades on either side of 1900,
as the Australian colonies moved to Federation and towards
independence. If he met sectarian prejudice, it did not slow him down.
The son of a small town shopkeeper passed from what is now Blackrock
College, to Trinity College, Dublin, to the Middle Temple, to the Irish Bar,
at the age of 25 to the Victorian Bar, to a brief period selling insurance
and sewing machines, to practicing law in South Australia. Then he
entered political life, as an advocate of the once-popular but now
forgotten views of Henry George – that there should be only one tax, a
land tax. Taken as a whole, his career reveals him to be what might be
called a radical conservative with socialist tinges, strongly influenced by
his ardent Catholic faith. In short, he was difficult to pigeonhole. In that
career he supported female suffrage and suffrage reform generally, free
trade, land nationalisation, the nationalisation of public utilities and other
monopolies, Federation and Irish Home Rule. He supported the miners
in their strike at Broken Hill in 1892. But his attractiveness to the Labor
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cause was doubtless diminished by his opposition to legislation
restricting Chinese immigration to South Australia. He had great powers
as a publicist and as an orator. He gained a great reputation for
independence of thought, for culture, for learning and for rock-like
integrity. He served several times in the South Australian Parliament. He
served in the Federal Convention in 1897-98. He then served in the
federal House of Representatives from 1901 to 1919. He also served
three times as a Federal Minister. Well-informed opinion holds that if he
had retained his seat after 1919, there might never have been a Bruce-
Page government or a Bruce Prime Ministership, but rather a Glynn
Prime Ministership. That is because, great statesman though Stanley
Melbourne Bruce turned out to be, by the early 1920s he had much less
experience than Glynn. But for present purposes let us remember the
opening words of the Imperial Act which brought our Constitution into
being:
Whereas the people of New South Wales, Victoria, South
Australia, Queensland and Tasmania, humbly relying on the
blessing of Almighty God, have agreed to unite in one indissoluble
federal Commonwealth under the Crown…
To Glynn is traditionally assigned the authorship of that reference to
humble reliance on the blessing of Almighty God.
Those words reflected what the elite of the Federation generation saw
as fundamental. They do not reflect what modern elites think. The public
voices of modern elites are not humble. They conceive themselves to
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have entitlements and rights, not blessings. And they do not feel any
gratitude to Almighty God for their entitlements and rights. This lecture
centres on the desire of modern elites to exclude any role for religion in
Australian public discussion – and perhaps any role for religion at all in
any sphere, public or private.
Any statement or other conduct which modern elites do not like is
instantly made the subject of a demand that there be an apology.
Modern elites consider that what one does not condemn one must be
taken to accept. Modern elites have failed to understand that that places
them in a difficult position. Some little time ago a particular point of view
was publicised with the words: “Burn churches, not gays”. The level of
taste which is integral to this contribution can be gauged from the
remembrance it summons up – surely inevitably and probably
intentionally – of the fact that the last organisation in the West with any
power to burn places of worship was the Nazi regime, and the fact that
that regime moved very quickly from burning Jewish synagogues in
November 1938 to burning those who attended those synagogues from
1942 onwards – in their millions.
Let us look at a second charmless incident. More recently vandals
daubed on the walls of a Baptist church the words “Crucify ‘No’ Voters”.
The level of taste involved can be gauged from its deliberate and
blasphemous allusion to a central element of Christian belief. This would
not easily be seen by some elements in modern elites, who seem to
waver between the contradictory contentions that Christ never existed,
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or that Christ was never crucified, or that the Roman soldiers who
attempted the crucifixion behaved with such incompetence that Christ
merely fell unconscious and never actually died on the Cross.
Does not the failure of modern elites to condemn these two examples of
sub-human behaviour indicate an acceptance by the elites of their
propriety and validity?
A related catchcry commonly now heard is “Why don’t religious people
stop forcing their opinions on everyone else?” This call for what in
Germany in the 1940s would have been called a compulsory inner
emigration will be discussed later below.
These phenomena highlight an aspect of modern elites – the relativism
of their beliefs and their conduct. It is all right for one element of public
opinion to call for the physical destruction of places of worship and the
death of those who worship in them. That is treated as merely routine,
apparently fit to pass without comment. But it is not seen as all right for
those who worship to state publicly the beliefs they hold, and to argue,
whether on narrowly religious, or ethical or utilitarian grounds for or
against particular policy positions under general debate. It is all right for
the elite to support a particular point of view, but intolerable for anyone
else to oppose it. That is what modern elites call “tolerance”.
Until recently the approach of modern elites to religion was one of
indifference. It is easy to understand how this came to be. The horrors of
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life in earlier times made it understandable that human beings were
strongly attracted to seeking consolation in religious faith and in the
hope of a better world after life in this world ended. We forget the extent
to which some types of prosperity have become much more common in
the West. And we forget how fast this has happened. A century ago the
great Dutch historian J. H. Huizinga commenced his work The Waning of
the Middle Ages as follows, in a chapter entitled “The Violent Tenor of
Life”:
To the world when it was half a thousand years younger, the
outlines of all things seemed more clearly marked than to us. The
contrast between suffering and joy, between adversity and
happiness, appeared more striking. All experience had yet to the
minds of men the directness and absoluteness of the pleasure
and pain of child-life. Every event, every action, was still embodied
in expressive and solemn forms, which raised them to the dignity
of a ritual. For it was not merely the great facts of birth, marriage,
and death which, by the sacredness of the sacrament, were raised
to the rank of mysteries; incidents of less importance, like a
journey, a task, a visit, were equally attended by a thousand
formalities: benedictions, ceremonies, formulas.
Calamities and indigence were more afflicting than at present; it
was more difficult to guard against them, and to find solace.
Illness and health presented a more striking contrast; the cold and
darkness of winter were more real evils. Honours and riches were
relished with greater avidity and contrasted more vividly with
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surrounding misery. We, at the present day, can hardly
understand the keenness with which a fur coat, a good fire on the
hearth, a soft bed, a glass of wine, were formerly enjoyed.1
In the century since Huizinga wrote those words, the contrast between
the painful environment of past ages and the gluttonous and sensual
milieu of the present has become far more marked. Now indifference
based on rising wealth is insidiously damaging to religion. Prosperity has
proved a graver foe than persecution. As the world we are in becomes
more attractive, the less need is there for contemplating the possibility of
some other more perfect world and the less adherence there is to a strict
morality. Lord Acton said that “the moral law is written on the tablets of
eternity”. Apart from laying down the moral law, religion asks two
questions. What is the nature of humanity? What is the destiny of
humanity? It tries to transcend the trivial and the worldly. It looks for
windows into another world. It may not stress a tragic vision of life. But it
does try to stress a serious vision of life. To those satisfied with the
pleasures of this world, now so freely available, questioning and
searching of these kinds is of no interest.
But members of modern elites are moving away from mere indifference.
They are embracing a fanatical anti-clericalism. Some want to destroy
faith itself. We know there have been recent persecutions in the Middle
East of a kind and on a scale that have not been seen for centuries –
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1 The Waning of the Middle Ages (Penguin Books Ltd, transl. ed 1922) p 1.
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rarely under the Ottomans until their treatment of the Armenians, not
much under the states which succeeded the Ottoman Empire. Now,
however, mass murders and threats of mass murder are disrupting and
scattering communities who have lived peacefully in the Middle East for
a very long time in peace and harmony with their neighbours. We must
hope that never happens in Australia. But something which, though less
severe, is equally uncompromising is emerging in Australia. Among the
elites is developing a hostility to religion which has not been seen in the
West since the worst excesses of the French Revolution, or at least the
vengeful Premierships of Émile Combes in the early 20th century. The
hostility is demonstrated least against Hindus and Buddhists – for they
are neither numerous nor highly visible. It is also not much demonstrated
against Muslims, despite the threat and actuality of terrorist outrages,
perhaps because the Muslim vote is the key to winning and losing
parliamentary seats. It is beginning to be demonstrated against Jews.
Their numbers are low, but those parts of the elites which respond to
electoral hatred for the State of Israel are drifting back into an anti-
Semitism which one had thought had been purged from Western life by
the horrors of the Second World War and the persecution of Jews in
communist eastern Europe and Russia after 1945. No allowance is
made for the appalling dilemmas facing Israeli leaders, surrounded as
they are by a sea of Muslim hate. And hostility is increasing markedly
against Catholics. One of the aphorisms of the great parliamentary
leader of the German Centre Party, Ludwig Windhorst, is becoming true
again: “Anti-Catholicism is the anti-Semitism of the intellectuals”. But no
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Christian denomination seems to be exempt from the new de-
Christianisation campaign.
Now it is evil to invite anti-religious violence. It is also evil to damage the
property of religious institutions. To fail to denounce those evils is to
associate oneself with them. The case for the elites is weakened not
only by their association with those evils. It is also weakened by their
failure to appeal to reason. There is among us here tonight the
Reverend Peter Kurti, a licensed Anglican priest interested in the place
of religion in Australian public life. He has recently written a remarkable
book entitled The Tyranny of Tolerance: Threats to Religious Liberty in
Australia. I owe a debt to it. For some of his themes underlie this
address. In that book he argues that traditionally liberalism aimed to
protect individuals against the encroaching power of the state. But this
type of liberalism has been replaced. The new liberalism calls for the
enervation of religious faith and religious practice. It sees faith as
something which is at best an individual subjective profession of taste –
a sort of hobby, harmless enough, but only if practiced in private. Instead
real tolerance extends only to those who are alleged to be victims of
discrimination. He says:
In truth, however, this tolerance is not “open-mindedness”. It is a
form of moralistic relativism concerned with elevating the rights
and interests of any who are perceived to be victims of
discriminatory or marginalising behaviour.
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Tolerance in the name of relativism has, indeed, become its own
form of intolerance. We are commanded to respect all difference
and anyone who disagrees can expect to be shouted down,
silenced or, often, branded a racist. Everyone must be “tolerant”.2
The modern elites are tyrants of tolerance. They say: “You must listen to
what I am going to say. Then you must either praise my virtue or shut
up. Because if you try to say you disagree and why, you deserve to be,
and you will be, hounded out of all decent society.” Thus the tyrants of
tolerance pay lip-service, but only lip-service, to freedom of religion as a
fundamental human right. Peter Kurti wants to defend freedom of
religion. It can be destroyed by persecution in the manner of some
Roman emperors or ISIS. It can be destroyed as well by the tactics of
the tyrants of tolerance. Section 116 of the Constitution prevents the
enactment of any Commonwealth law prohibiting the free exercise of
religion. The tyrants of tolerance react to what religious speakers may
say with orchestrated vilification, insults, derision, scorn, fake outrage
and bullying mockery. That howling down can do as much to prevent the
free exercise of religion as any law falling foul of s 116.
In short, modern elites do not demand tolerance. They demand
unconditional surrender. They want absolute victory for an uncontestable
dogma which is unchallengeable – or at all events is not to be exposed
to the risk of challenge. The modern elites call for their creeds to be
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2 Peter Kurti, The Tyranny of Tolerance: Threats to Religious Liberty in Australia (Connor Court Publishing, 2017), p 6.
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tolerated. Then they call for them to be compulsory. Then they want
them to be exclusive. One small saving grace is that the contents of
these creeds, dogmatically and absolutely stated though they are, do
seem to vary from time to time.
This authoritarian claim overlooks the roles of both courtesy and reason.
In almost every way the last five or six decades have seen a massive
change in courtesy, civility and mutual respect. Seats are not given up to
the pregnant, the elderly and the infirm on public transport. Travellers
are not given immunity from noise made by other travellers. Citizens are
not free from noise made by their neighbours. Passersby in suburban
streets are tending not to greet each other with the politeness of former
times. Public violence and drunkenness is more common. Triviality and
loutishness prevail in commercial life, and at all levels of public life from
parliamentary processes to community debate.
But there is more wrong with the approach of the elites than discourtesy.
Their approach disables them from – makes them incapable of –
presenting their point of view, for what it is worth, properly. To shout is
not to argue. To censor is not to reason. To bawl is not to engage in
persuasion.
There is a form of persuasion associated with the 8th Duke of
Devonshire. So far as he is known now at all, he is best known as the
Marquis of Hartington, under which name he sat in the House of
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Commons for 37 years until 1893. He had the unique distinction of being
offered the Prime Ministership on three occasions, in 1880, 1886 and
1887, and each time refusing. The announcement in 1886 of
Gladstone’s plans to give home rule to Ireland caused the Duke to
detach the Whigs from the right wing of the Liberal Party while Joseph
Chamberlain led out the Unionist radicals from the left wing. As a much
younger man the Duke had been the model for the leading character in
Trollope’s political novels, Plantagenet Palliser, Duke of Omnium. On 24
March 1908, he died with the words: “Well, the game is over, and I am
not sorry.” When the news reached the House of Commons that
afternoon, the Prime Minister, Sir Henry Campbell- Bannerman, was ill
and absent. He was a doomed man; he resigned ten days later; and
within a month he too died. The duty of announcing the news of the
Duke’s death thus fell to Mr H H Asquith – then the Chancellor of the
Exchequer, shortly to be Prime Minister. How was Mr Asquith to deal
with the man whose fragmentation of the Liberal Party had kept it out of
office for most of the previous twenty years? He paid him an elegant
tribute -and a handsome one. He said that the Duke was “almost the last
survivor of our heroic age”. The Leader of the Opposition, Mr A J
Balfour, the Prime Minister before Campbell-Bannerman, attempted to
explain the source of the Duke’s stature, in a speech which was in its
day famous:
I think of all the great statesmen I have known the Duke of
Devonshire was the most persuasive speaker; and he was
persuasive because he never attempted to conceal the strength of
the case against him. … What made the Duke of Devonshire
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persuasive to friends and foes alike was that when he came
before the House of Commons or any other Assembly, he told
them the processes through which his own mind had gone in
arriving at the conclusion at which he ultimately had arrived. Every
man felt that this was no rhetorical device, but that he had shown
in clear and unmistakable terms the very intimate processes by
which he had arrived at the conclusion which he then honestly
supported without fear or favour, without dread of criticism, without
hope of applause. … In the Cabinet, in the House of Commons, in
the House of Lords, on the public platform, wherever it was, every
man said, ‘Here is one addressing us who has done his best to
master every aspect of this question, who has been driven by
logic to arrive at certain conclusions, and who is disguising from
us no argument on either side which either weighed with him or
moved him to come to the conclusion at which he has arrived.
How can we hope to have a more clear-sighted or honest guide in
the course we ought to pursue?’ That was the secret of his great
strength as an orator.
The point is that to expose and deal with the difficulties in one’s case
can be a passport to decisive intellectual success. It is not a technique
employed by the elites. They will not concede any difficulty in their case.
Or at least they will not concede any right in their opponents to expose
any such difficulty.
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Another curious feature of modern elites is this. They call themselves
liberal and tolerant. Their “liberalism” and “tolerance” is the product of a
long historical process. Modern liberalism in any genuine sense reveals
several key characteristics – in a belief in individual liberty, in the moral
equality of individuals, in a legal system based on equal treatment of like
cases, and in a representative form of democratic government. In the
West, modern liberalism also goes further, in calling for massive public
expenditure – on education at all levels, on public health, and on support
for the aged, the poor, those incapable of work and those unable to get
it. Opinions may differ on what the precise mix of these latter
characteristics ideally should be, but there is no real difference about the
former key characteristics.
How did this modern ideal of liberalism arise? Out of the very religion
which is now the most despised – Christianity. From the time Christ
walked the earth in Galilee trends began which though at varying speeds
and in different ways and subject to various setbacks developed the
modern age. The process has been traced in a fine book written by Sir
Larry Siedentop, a man who, like Peter Kurti, is an old friend of mine. So
my praise for both of them must be discounted for that fact. Sir Larry
Siedentop was brought up in the United States. But he has lived and
taught in England for five decades. His book is Inventing the Individual:
The Origins of Western Liberalism. He points out that before the Greek
and Roman republics emerged, society was based on families run by
patriarchs. The Greek republics were in effect tyrannies or oligarchies.
Rome was originally run by kings, then by a republican oligarchy, then
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by emperors whose power in the first and last resort rested on military
strength. In these societies so-called ‘citizens’ were few in number. In
different ways women, younger sons, slaves, captives and foreigners
could enjoy only debased and limited roles. Even a genius like Aristotle
viewed slavery as inevitable: “Some are free men, and others slaves by
nature.”3 Thus natural inequality, and the natural superiority of the few
over the many, were basic assumptions. The world was seen as
dominated by many inscrutable deities and an uncontrollable and
immutable fate.
The advent of Christ revealed different values. He showed a concern for
the ill, the socially marginal, the outsider, the destitute. He opposed self-
righteousness and hypocrisy. He had no concern to associate with
wealth, power or celebrity. His associates were humbler. Many of them
were women. He saw little children as heirs to the Kingdom of Heaven.
He encouraged a search for the beam in one’s own eye before
identifying the mote in someone else’s. He encouraged his followers not
merely to love their friends and neighbours, but also to forgive their
enemies. He urged them not to meet violence with violence. The social
teachings of Christ were reflected, for example, in the monastic tradition
later. Thus in the fourth century St Basil of Caesarea said: “It is God’s
will that we should nourish the hungry, give the thirsty to drink, and
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3 Quoted by Sir Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Allen Lane, 2014), p 118.
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clothe the naked.”4 They live on in religious charities even to this very
day.
But above all Christ taught that all human beings were equal before
God, and all could enter the kingdom of God.
His followers came to treat his life as a revolutionary and dramatic
intervention of the divine into secular affairs. And they saw his role as
going beyond the way his enemies saw him – as a rebel against
unsympathetic religious leaders and Jewish puppets of Roman
governors – to having universal significance for each individual human
being. As Paul told the Galatians: “There is neither Jew nor Greek, there
is neither slave nor free, there is neither male nor female; for you are all
one in Christ Jesus.”5 Paul advocated relying on conscience and good
intentions and abandoning the ritual behaviour of the ancient world and
the Jews, with its mechanical following of rules and immemorial
customs. He urged the exercise of free choice in accepting the gift of
grace attained through faith in Christ. Salvation was a matter of personal
decision to be resolved between each individual and God. In that sense
all were equal. Those equal in the eye of God came to be seen as equal
in the eye of the law. For this reason Siedentop asks: “Was Paul the
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4 Quoted by Sir Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Allen Lane, 2014), p 96.
5 Galatians 3:28.
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greatest revolutionary in human history?”6 And he states: “Through its
emphasis on human equality, the New Testament stands out against the
primary thrust of the ancient world, with its dominant assumptions of
‘natural’ inequality. Indeed the atmosphere of the New Testament is one
of exhilarating detachment from the unthinking constraints of inherited
social rules.”7
So Tertullian said that Christ had done “one mighty deed … – to bring
freedom to the human person”.8 In due course this attracted hostility
from the Roman Empire. The persecutions of some Roman Emperors –
not just failures like Nero or military dictators like Trajan or desperate
rulers like Decius and Valerian trying to save a collapsing state, but
objects of modern veneration like the supposedly civilised Marcus
Aurelius – assisted the spread of Christianity. As Tertullian also said, the
blood of the martyrs was “the seed of the church”.9 The process was
perhaps aided, perhaps hindered, by the gradual conversion of the
somewhat flawed figure of the Emperor Constantine, with his
unfortunate identification of Church and State. The last battle was fought
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6 Sir Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Allen Lane, 2014), p 353.
7 Sir Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Allen Lane, 2014), p 353.
8 Quoted by Sir Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Allen Lane, 2014), p 77.
9 Quoted by Sir Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Allen Lane, 2014), p 80.
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by the Emperor Julian, who tried to revive paganism, but whose dying
words were “Thou hast triumphed, Galilean”. Yet even his goal was not
to revive polytheistic paganism as it had been. Instead he wanted to
create a new paganism with Christian influences, resting, like
Christianity, on “the love of God and of fellow men”, and asserting
“charity” as its vocation. He saw the spread of Christianity as resting on
“their benevolence to strangers, their care for the graves of the dead and
the pretended holiness of their lives”.10 Even the great Councils of the
4th and 5th centuries prefigured the modern liberal world, as they tried to
thrash out fundamental questions in long debates, like a 19th century
representative legislature.
Now the modern elites – the tyrants of tolerance – in seeking to
marginalise or silence Christianity are not only rejecting the cultural
tradition of Christianity. Not only are they rejecting a large part of the
entire life and history of the nation – because Christianity is so integrated
with the national life and history that to annihilate it is to destroy that
national life, which can live only in memory. They are also rejecting that
fundamental part of the Christian tradition which is the source of the
modern world and of their own favoured position within it. They are doing
it whether they realise it or not. To do that is to run a risk of returning at
least in part to what the Christian tradition replaced. And what it replaced
is rule by patriarchs, or aristocracies, or oligarchical castes, heavily
based on slavery, involving the subjugation of women, captives and
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10 Quoted by Sir Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Allen Lane, 2014), p 89.
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younger sons and not recognising the status of aliens. It is to drift
towards the opposite of Christianity. Above all, the modern elites
welcome tyranny. Why not? They are the tyrants of tolerance
themselves, in tolerating only their mercurial views alone, even though
those views change with the fickleness of fashion.
The Girondin leader Vergniaud said that the French Revolution, like
Saturn, was devouring its own children. Like other Girondin leaders and
many other revolutionary leaders from Danton and Robespierre down,
he died under the guillotine. In Australia we see the reverse. The
children of the Christian revolution, after denying that it was their father,
are devouring the revolution.
Perhaps the last parts of the argument go too far. Members of modern
elites would incredulously deny that their protected position owed
anything to Christianity. But some of them would accept, perhaps, that
that protected position owes something to classical secular liberalism.
Liberalism endeavoured to create governmental structures which
protected a private sphere of individual freedom. In that sphere, religious
belief could survive. But some members of modern elites depart from
their own origins in secular liberalism. By preventing any public
expression of religious thought through ridicule and bullying, they tend to
cause religion to wither away even in the private sphere. What can have
no public expression will eventually cease to have any private existence.
Thus the elites seek to destroy their inheritance from secular liberalism.
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Sometimes the stance of the elites is defended by contending that there
is no element of religious discrimination or persecution involved in
requiring or inducing those of religious faith not to proselytise, manifest it
publicly, or employ it as a source for the discussion of public issues, so
long as they are at liberty to practice their faith in private. A bench of the
United States Court of Appeals for the Seventh Circuit (Flaum CJ,
Posner and Williams JJ) has denied this. The opinion, written by Judge
Posner, pointed out that refugees are entitled to claim asylum on the
basis of religious persecution even if they can escape the notice of their
persecutors by concealing their religion. The Court said:
Christians living in the Roman Empire before Constantine made
Christianity the empire’s official religion faced little risk of being
thrown to the lions if they practiced their religion in secret; it
doesn’t follow that Rome did not persecute Christians…11
Another argument which might be advanced for the elites, though it does
not appear to have been, is that silencing religious persons by forcing
them entirely out of the public arena is not discrimination, because it is
not contrary to the Racial Discrimination Act 1975 (Cth). Section 9(1) of
the Act provides:
It is unlawful for a person to do any act involving a distinction,
exclusion, restriction or preference based on race, colour, descent
or national or ethnic origin which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise, on
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11 Muhur v Ashcroft, 355 F 3d 958 at 961 (7th Cir, 2004).
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an equal footing, of any human right or fundamental freedom in
the political, economic, social, cultural or any other field of public
life.
That contains no reference to religion. And in the highly controversial s
18C, para (1)(b), selects as a requirement for unlawfulness the doing of
an act “because of the race, colour or national or ethnic origin of [a]
person or of some or all of … people in [a] group” – but not religion. If s
18C is to stay, why is religion not given the protection it affords?
Perhaps this non-protection of religion is to be explained because the
constitutional validity of s 9(1) probably can rest solely on s 51(xxix) of
the Constitution. That gives the Commonwealth power to make laws
about “external affairs”. That has been read as including treaties. As a
result of once controversial but now generally accepted decisions of the
High Court, a statute giving effect to a treaty is valid under ss 51(xxix)
even though no other head of legislative power supports it. The treaty on
which the Racial Discrimination Act 1975 is based defines “racial
discrimination” as meaning “any distinction, exclusion, restriction or
preference based on race, colour, descent, or national or ethnic origin
which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural or any
other field of public life” (art 1(1)). Again, there is no referenece to
religion. That may explain why the Act does not prevent religious
discrimination. It is true that s 351 of the Fair Work Act 2009 (Cth)
prohibits employers from taking adverse action against an employee on
22.
religious grounds, subject to exceptions for certain actions taken against
staff members of religious institutions. Outside that field religious
persons are left without protection, unless it is to be found in state law.
However, in the Anti-Discrimination Act 1977 (NSW), for example, there
is no protection for religious activity as such. There are protections for
the incitement of hatred on the ground of race in s 20C(1). “Race” is
defined as including “colour, nationality, descent and ethnic, ethno-
religious or national origin”. This leaves out religious origin other than
“ethno-religious” origin. This entire issue of anti-religious discrimination
and of protections against it may become important, of course, if the
“Yes” vote in the current plebiscite is in the majority.
So far as the exercise of State power by the legislature or the judiciary is
concerned, it cannot be said yet to have threatened the interests of
religious persons and their institutions as much as some of the elites
would like. There are qualifications to that. One thinks of Archbishop
Porteous. One thinks of the Victorian Court of Appeal’s construction of
some Victorian legislation.12 The most immediate threat is from the
conduct of the elites using methods other than the force of law itself. But
a threat to religious institutions may not stop there. It may eventually
come from the law itself. If it does, it may begin a trend which is likely to
extend to many other institutions whom the elites and the State which
they tend to dominate come to dislike. That is why even those who are
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12 Christian Youth Camps Ltd v Cobow Community Health Service Ltd [2014] VSCA 75.
23.
not members of religious institutions and have no particular sympathy for
them ought to fear the current war on religious faith.13 But if the elites
were able to proceed by force of law – whether by laws specifically
directed against their religious enemy or by laws which have a damaging
impact on that enemy unless protections are provided – some may think
that the time for talking alone may have passed. Some may think that
the time for resistance may have come. Some may see it as necessary
to deliver sermons attacking unjust laws with sufficient power to threaten
the life of governments, as Cardinal von Galen did against Nazi
involuntary euthanasia, at the price of incarceration in a concentration
camp. Some may see it as necessary to endure imprisonment and exile
as Cardinal Mindszenty did for his stand against Communist oppression
and expropriation in Hungary after 1945. Some may see it as necessary
to endure imprisonment and expropriation, as thousands of priests and
churches did for opposing Bismarck’s anti-Catholic laws. Australian law
now prevents any repetition of the fate of St Ignatius of Antioch. But
perhaps once again some persecution – less brutal physically, but just
as real – will be the seed of the Church.
Let us return to the man honoured by this lecture. Had Glynn lived to see
the days which a pessimist may consider to be coming, how would he
have reacted to them? Probably with clear-headedness, but also with
fire and passion.
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13 Peter Mulherin and Simon P Kennedy, “Archipelago or Landmass? Voluntary Associations, Civil Society and the Health of Liberal Democracy” (2017) 33(2) Policy 40.